Carlito-Garcias v. City of Fort Worth, Texas

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ALEXIS CARLITO-GARCIAS, AS §

HEIR OF CHRISTOPHER LOWE, §

§

Plaintiff, §

§

VS. § NO. 4:20-CV-330-P

§

CITY OF FORT WORTH, ET AL., §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Came on for consideration the motions of Defendants Scott Smith (“Smith”),

Christopher Golden (“Golden”), Mitchell Miller (“Miller”), Taylor Stephens (“Stephens”),

Daniel Pritzker (“Pritzker”), Andrew Scharf (“Scharf”), and Hans Fellhauer (“Fellhauer”)

(collectively, “Movants”) to dismiss. The Court, having considered the motions, the

response of Plaintiff, Alexis Carlito-Garcias, as heir of Christopher Lowe (“Lowe”), the

replies, the record, and applicable authorities, finds that the motions should be

GRANTED.

BACKGROUND

On April 10, 2020, Plaintiff filed her complaint in this action, alleging claims

against Movants and the City of Fort Worth (“City”), which employed Movants as police

officers. Doc.1 1. Movants filed motions to dismiss, Docs. 17, 19, 22, 26, 28, 31, and

1The “Doc. __” reference is to the number of the item on the docket in this action.

Plaintiff filed an amended complaint in response. Doc. 35. The amended complaint is

Plaintiff’s operative pleading.

In the amended complaint, Plaintiff alleges: On July 26, 2018, Smith was dispatched

to a prowler call. When he arrived, he saw Lowe sitting near the front of a white SUV

parked in a driveway. Lowe was holding an object and banging it on a gate or metal bar.

Doc. 35, ¶ 14. None of the people standing around knew Lowe. Smith told them that since

Lowe was not really hurting anything, Smith was going to get back up. No one expressed

any concern. Id. ¶ 15. Miller and Golden arrived. When Lowe discarded the object, the

officers moved to take him into custody. Lowe did not resist. Id. ¶ 16. Lowe followed a

command to roll onto his stomach. He told officers that he was sick. Id. ¶ 17. Officers

commanded Lowe to stand and he said that he could not. Smith yelled at Lowe to stand

and Miller and Golden yanked Lowe up by his cuffed hands. Id. ¶ 18. Smith noted that

Lowe’s eyes were “bugged out.” Golden and Miller walked Lowe down the driveway. He

slumped down but was yanked back up and told to stand and walk. Lowe again said he was

sick. He was dragged a few more steps and told officers he was sick and dying. Id. ¶ 19.

Officers once again yanked Lowe to his feet and he cried out, “wait, wait, wait, wait, wait.”

Miller told Lowe that if he fell again, he would just let him fall. Lowe stated, “I can’t

breathe” and “wait, wait, wait, wait, wait.” Golden’s response was “don’t pull that shit.”

Id. ¶ 20. Pritzker and Fellhauer arrived. Lowe told all of the officers that he could not

breathe. Lowe slumped forward, crying out “aarghhhhhhh” and saying he could not

breathe. Miller responded, “yeah, you can.” Lowe again said he was dying. Id. ¶ 22.

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Pritzker took over for Miller and helped force Lowe into the back of a patrol car. Lowe

cried out and an unidentified officer told Lowe that if he spit on him, the officer would put

his face in the dirt. Id. ¶ 25. Scharf and Stephens arrived and all of the officers stood in a

group talking. Smith told them about Lowe’s behavior, symptoms of drug overdose, and

that Lowe had complained of an inability to breathe. Id. ¶ 27. During the discussion, it was

determined that Golden would transport Lowe to John Peter Smith Hospital (“JPS”) for an

emergency mental evaluation. Pritzker advised Golden to withhold information that the

officers believed Lowe was under the influence of narcotics. Stephens advised to take

Lowe “straight up and don’t say anything else.” None of the movants objected. Id. ¶ 28.

Lowe began to bang his head. Fellhauer and Golden told Lowe that they would pepper

spray him if he did not stop. Lowe told them he needed to go to the hospital. Golden told

Lowe they needed to know his name before they could transport him to the hospital. They

obtained Lowe’s identification but did not call an ambulance or transport Lowe to the

hospital. Id. ¶ 29. Almost twenty minutes after Smith had encountered Lowe, Lowe was

discovered unresponsive in the back of the patrol car. An ambulance was called. Lowe was

pronounced dead after he was transported to JPS. Id. ¶ 31. Lowe died of acute cocaine

intoxication. Id. ¶ 32. Each officer was disciplined by the Acting Chief of Police. Id. ¶¶ 34–

40.

Plaintiff sues the Movants under 42 U.S.C. § 1983 for violations of Lowe’s rights

under the Fourth and Fourteenth Amendments, saying that each was deliberately

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indifferent to Lowe’s serious medical needs. She also says that they restrained Lowe’s

liberty in violation of the Fourth Amendment.2

In addition to her amended complaint, Plaintiff filed a Rule 7(a) reply, Doc. 43, and

appendix in support, Doc. 44, in response to Smith’s answer asserting qualified immunity.

Doc. 39. The appendix includes a thumb drive containing videos and the disciplinary report

pertaining to Smith. Doc. 44. In her response to the motions to dismiss, Plaintiff quotes

from the disciplinary reports regarding the other Movants, Doc. 49, which contain

substantially similar language to the Smith report.

Each of the Movants alleges that Plaintiff has failed to sufficiently plead the claims

against him or her. Each also contends that he or she is entitled to qualified immunity.

LEGAL STANDARDS

A. Pleading

Rule 8(a)(2) of the Federal Rules of Civil Procedure provides, in a general way, the

applicable standard of pleading. It requires that a complaint contain “a short and plain

statement of the claim showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2),

“in order to give the defendant fair notice of what the claim is and the grounds upon which

it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks

and ellipsis omitted). Although a complaint need not contain detailed factual allegations,

the “showing” contemplated by Rule 8 requires the plaintiff to do more than simply allege

2Plaintiff did not respond to the motions to dismiss on this ground, thus abandoning it.

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legal conclusions or recite the elements of a cause of action. Twombly, 550 U.S. at 555 &

n.3. Thus, while a court must accept all of the factual allegations in the complaint as true,

it need not credit bare legal conclusions that are unsupported by any factual underpinnings.

See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the

framework of a complaint, they must be supported by factual allegations.”).

Moreover, to survive a motion to dismiss for failure to state a claim, the facts

pleaded must allow the court to infer that the plaintiff’s right to relief is plausible. Iqbal,

556 U.S. at 678. To allege a plausible right to relief, the facts pleaded must suggest liability;

allegations that are merely consistent with unlawful conduct are insufficient. Id. In other

words, where the facts pleaded do no more than permit the court to infer the possibility of

misconduct, the complaint has not shown that the pleader is entitled to relief. Id. at 679.

“Determining whether a complaint states a plausible claim for relief . . . [is] a context-

specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id.

As the Fifth Circuit has explained: “Where the complaint is devoid of facts that

would put the defendant on notice as to what conduct supports the claims, the complaint

fails to satisfy the requirement of notice pleading.” Anderson v. U.S. Dep’t of Housing &

Urban Dev., 554 F.3d 525, 528 (5th Cir. 2008). In sum,

a complaint must do more than name laws that may have been violated by

the defendant; it must also allege facts regarding what conduct violated those

laws. In other words, a complaint must put the defendant on notice as to what

conduct is being called for defense in a court of law.

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Id. at 528–29. Further, the complaint must specify the acts of the defendants individually,

not collectively, to meet the pleading standards of Rule 8. Iqbal, 556 U.S. at 676; Jones v.

Hosemann, 812 F. App’x 235, 238 (5th Cir. 2020); Griggs v. State Farm Lloyds, 181 F.3d

694, 699 (5th Cir. 1999).

In considering a motion to dismiss for failure to state a claim, the court may consider

documents attached to the motion if they are referred to in the plaintiff’s complaint and are

central to the plaintiff’s claims. Scanlan v. Tex. A&M Univ., 343 F.3d 533, 536 (5th Cir.

2003). The court may also refer to matters of public record. Papasan v Allain, 478 U.S.

265, 268 n.1 (1986); Davis v. Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995); Cinel v.

Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994). This includes taking notice of pending

judicial proceedings. Patterson v. Mobil Oil Corp., 335 F.3d 476, 481 n.1 (5th Cir. 2003).

And, it includes taking notice of governmental websites. Kitty Hawk Aircargo, Inc. v.

Chao, 418 F.3d 453, 457 (5th Cir. 2005); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir.

2005).

B. Qualified Immunity

Qualified immunity insulates a government official from civil damages liability

when the official’s actions do not “violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). For a right to be “clearly established,” that right’s contours must be

“sufficiently clear that a reasonable official would understand that what he is doing violates

that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Individual liability thus turns

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on the objective legal reasonableness of the defendant’s actions assessed in light of clearly

established law at the time. Hunter v. Bryant, 502 U.S. 224, 228 (1991); Anderson, 483

U.S. at 639–40. In Harlow, the Court explained that a key question is “whether that law

was clearly established at the time an action occurred,” because “[i]f the law at that time

was not clearly established, an official could not reasonably be expected to anticipate

subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade

conduct not previously identified as unlawful.” 457 U.S. at 818. In assessing whether the

law was clearly established at the time, the court is to consider all relevant legal authority,

whether cited by the parties or not. Elder v. Holloway, 510 U.S. 510, 512 (1994). If public

officials of reasonable competence could differ on the lawfulness of defendant’s actions,

the defendant is entitled to qualified immunity. Mullenix v. Luna, 577 U.S. 7, 11 (2015);

Malley v. Briggs, 475 U.S. 335, 341 (1986); Fraire v. City of Arlington, 957 F.2d 1268,

1273 (5th Cir. 1992).

In analyzing whether an individual defendant is entitled to qualified immunity, the

court considers whether plaintiff has alleged any violation of a clearly established right,

and, if so, whether the individual defendant’s conduct was objectively reasonable. Siegert

v. Gilley, 500 U.S. 226, 231 (1991); Duckett v. City of Cedar Park, 950 F.2d 272, 276–80

5th Cir. 1992). In so doing, the court should not assume that plaintiff has stated a claim,

i.e., asserted a violation of a constitutional right. Siegert, 500 U.S. at 232. Rather, the court

must be certain that, if the facts alleged by plaintiff are true, a violation has clearly

occurred. Connelly v. Comptroller, 876 F.2d 1209, 1212 (5th Cir. 1989). Even if defendants

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are alleged to have acted in unison, the court must address the actions of each individually

to determine whether qualified immunity applies. Cass v. City of Abilene, 814 F.3d 721,

730–31 (5th Cir. 2016); Meadours v. Ermel, 483 F.3d 417, 421–22 (5th Cir. 2007); Stewart

v. Murphy, 174 F.3d 530, 537 (5th Cir. 1999).

A mistake in judgment does not cause an officer to lose his qualified immunity

defense. In Hunter, the Supreme Court explained:

The qualified immunity standard “gives ample room for mistaken

judgments” by protecting “all but the plainly incompetent or those who

knowingly violate the law.” Malley, [475 U.S.] at 343, 341. This

accommodation for reasonable error exists because “officials should not err

always on the side of caution” because they fear being sued.

502 U.S. at 229. “[A]n allegation of malice is not sufficient to defeat immunity if the

defendant acted in an objectively reasonable manner.” Malley, 475 U.S. at 341. Further,

that the officer himself may have created the situation does not change the analysis. That

he could have handled the situation better does not affect his entitlement to qualified

immunity. Young v. City of Killeen, 775 F.2d 1349, 1352–53 (5th Cir. 1985).

When a defendant relies on qualified immunity, the burden is on the plaintiff to

negate the defense. Kovacic v Villarreal, 628 F.3d 209, 211 (5th Cir. 2010); Foster v. City

of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994). The standard is demanding. Vincent v.

City of Sulphur, 805 F.3d 543, 547 (5th Cir. 2015). Although Supreme Court precedent

does not require a case directly on point, existing precedent must place the statutory or

constitutional question beyond debate. White v. Pauly, 137 S. Ct. 548, 551 (2017). That is,

the clearly established law upon which plaintiff relies should not be defined at a high level

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of generality, but must be particularized to the facts of the case. Id. at 552. Thus, failure to

identify a case where an officer acting under similar circumstances was held to have

violated a plaintiff’s rights will most likely defeat the plaintiff’s ability to overcome a

qualified immunity defense. Id.; Surratt v. McClarin, 851 F.3d 389, 392 (5th Cir. 2017).

C. Deliberate Indifference to Medical Needs

The Eighth Amendment proscribes the cruel and unusual punishments, which the

Supreme Court has interpreted to include deliberate indifference to serious medical needs

of prisoners. Estelle v. Gamble, 429 U.S. 97, 104 (1976). An arrestee’s complaint of

deliberate indifference to medical needs arises under the Fourteenth Amendment.

Thompson v. Upshur Cty., 245 F.3d 447, 457 (5th Cir. 2001). For deliberate indifference

to rise to the level of a constitutional violation, the plaintiff must establish that the

defendant knew of and disregarded an excessive risk to the plaintiff’s health or safety.

Farmer v. Brennan, 511 U.S. 825, 837 (1994). The defendant “must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and

he must also draw the inference.” Id. A defendant’s “failure to alleviate a significant risk

that he should have perceived but did not” does not constitute a constitutional violation. Id.

at 838. “[D]eliberate indifference cannot be inferred merely from a negligent or even a

grossly negligent response to a substantial risk of serious harm.” Thompson, 245 F.3d at

459. Rather, the plaintiff must show that the defendant acted with subjective deliberate

indifference. Hare v. City of Corinth, 74 F.3d 633, 648–49 (5th Cir. 1996) (discussing

Farmer).

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ANALYSIS

Smith is the only officer who was present during the entire encounter with Lowe.

Smith was dispatched to a prowler call. He arrived to find Lowe sitting near the front of a

white SUV, holding what appeared to be a small pipe and banging it lightly on a gate or

metal bar. Doc. 35, ¶ 14. The resident of the house was standing on the porch watching

Lowe. Another person standing in the yard began conversing with Smith. Smith noted that

Lowe was not really hurting anything at the moment and that Smith was going to get some

backup. Smith inquired and no one knew who Lowe was. Lowe made no verbal threats or

threatening actions and no one standing around made any expressions of terror regarding

him. Id. ¶ 15.

Miller and Golden arrived next. When Lowe discarded the object he was holding,

they grabbed Lowe and Smith yelled at Lowe to stand up. Lowe did not refuse any

commands, make any threats, resist or struggle at any time. Id. ¶¶ 16–18. Lowe was

directed by Smith to walk. Smith noted that Lowe’s eyes were bugged out. Golden and

Miller walked Lowe down the driveway. He slumped down but was yanked back up and

told to stand and walk. Lowe said that he was sick. He was dragged a few more steps and

told officers he was sick and dying. Id. ¶ 19. Lowe cried out, “wait, wait, wait, wait, wait.”

Miller told him if he fell again Miller would let him fall. Lowe stated, “I can’t breathe” and

“wait, wait, wait, wait, wait.” Golden said, “Don’t pull that shit.” Id. ¶ 20.

Pritzker and Fellhauer arrived. Lowe told all of the officers that he could not breathe.

All five officers moved Lowe toward the patrol car. Lowe slumped forward, crying

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“aarghhhhhh” and “no, I can’t breathe.” Miller told him, “yeah, you can.” Id. ¶ 22. Pritzker

took over for Miller and helped put Lowe in the back of the police car. Lowe cried out and

an unidentified officer told Lowe that if he spit on him, the officer would put his face in

the dirt. Id. ¶ 25.

Scharf and Stephens arrived and all of the officers stood in a group talking to each

other. Smith told all officers assembled “about Mr. Lowe’s behavior, symptoms of drug

overdose and that he had complained of his inability to walk or breathe.” Id. ¶ 27. It was

determined that Golden would transport Lowe to JPS for an emergency mental detention.

Pritzker advised Golden to withhold information that the officers believed Lowe was under

the influence of narcotics. Stephens advised to take Lowe “straight up and don’t say

anything else.” Id. ¶ 28. Lowe began to bang his head against the interior of the patrol

vehicle. Fellhauer and Golden went to talk with Lowe. Golden told Lowe that if he kept

banging his head, Golden would use pepper spray and it would get worse. Lowe told them

he needed to go to the hospital. Golden told Lowe they needed to know his name before

they could take him to the hospital. Lowe’s identification was obtained but no ambulance

was called. Id. ¶ 29.

Almost twenty minutes3 after Smith encountered Lowe, Lowe was discovered

unresponsive in the back of the patrol car. An ambulance was called. Lowe was pronounced

3 Smith’s disciplinary report reflects that Lowe was found unresponsive approximately 13

minutes after being placed in the patrol vehicle. Doc. 44, tab 2, Appx 3. The record does not reflect

how long it took an ambulance to arrive after being called. Plaintiff does not allege when Movants

subjectively knew that they were required to call an ambulance.

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dead after he was transported to JPS. Id. ¶ 31. Lowe died of acute cocaine intoxication. Id.

¶ 32. Fellhauer, Golden, Miller, Pritzker, Smith, and Stephens were disciplined by the

Acting Chief of Police for “neglect of duty,” “acts showing a lack of good moral character,”

“conduct prejudicial to good order,” and “violation of an applicable Fire or Police

Department rule, directive, general or special order.” Id. ¶¶ 34, 35, 36, 37, 39, 40. Scharf

was disciplined for “neglect of duty” and “violation of an applicable Fire or Police

Department rule, directive, general or special order.” Id. ¶ 38.

The court has reviewed the materials contained in the appendix and considered them

as part of Plaintiff’s pleading even though they were filed in response to Smith’s answer.

The only conceivably pertinent part of the videos is footage from Smith’s body cam

reflecting that Lowe said, “ahhhhh,” and Smith said, “get up.” Doc. 44, tab 1. The court is

not certain as to what was intended to be shown by the videos. The Stevens and Scharf

videos show them driving to the scene. The Golden video does not appear to be relevant.

The videos do not establish, much less support Plaintiff’s claims.

Also attached to the appendix is the disciplinary report regarding Smith. Id., tab 2.

That Smith may have violated local custom or protocol does not establish that he violated

Lowe’s constitutional rights; nor does it affect Smith’s right to qualified immunity. Pasco

ex rel. Pasco v. Knoblauch, 566 F.3d 572, 579 (5th Cir. 2009); Graham v. Hodge, 69 F.

Supp. 3d 618, 629 (S.D. Miss. 2014). The disciplinary report does not set forth specific

facts sufficient to show that Smith had subjective knowledge of facts from which the

inference of a substantial risk of serious harm could be drawn or that Smith actually drew

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that inference. And, to the extent that it might be required, as discussed infra, the report

certainly does not give any reason to believe that Smith subjectively intended any harm to

Lowe to occur. The same applies to all of the disciplinary reports.4

Taking the facts alleged as true, as the court must at this stage of the proceedings,

Plaintiff has failed to show that any of the Movants was deliberately indifferent to Lowe’s

serious medical needs. She has at most shown that: when Smith arrived, Lowe was lightly

banging a pipe on a gate or metal bar; Lowe was not hurting anything; no one expressed

concern for safety; Lowe did not struggle when officers took him down; he responded “ok,

ok” and “yes sir” to commands; Lowe told officers he was sick; Smith told Lowe to walk

and he did, although at points other officers held him up; Smith noted that Lowe’s “eyes

[were] bugged out;” Lowe slumped but regained his footing; Lowe stated, “I can’t breathe”

and “wait, wait, wait, wait, wait;” Golden told him not to pull that shit; Lowe again cried

that he could not breathe and Miller told him he could; Lowe told officers he was dying;

Golden and Pritzker put Lowe in the back of a patrol car; Lowe cried out again and an

unidentified officer told Lowe that if he spit on him, the officer would put Lowe’s face in

the dirt; the officers talked to each other while Lowe sat in the police car; it was determined

that one would take Lowe to JPS for an emergency mental detention; Pritzker advised

4As best the court can surmise from the reports, City has a policy that requires that an

ambulance must be called if a detainee says he is sick or cannot breathe or is dying, without regard

to the facts or circumstances known to the officer. Of course, failure to comply with that policy

does not mean that a detainee’s constitutional rights have been violated.

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Golden not to disclose that they believed Lowe was under the influence of narcotics5; Lowe

began to bang his head against the interior of the patrol car; Fellhauer and Golden talked

to Lowe and Golden threatened to pepper spray him if he continued banging his head;

Lowe told them he needed to go to the hospital; almost twenty minutes after Smith

encountered Lowe, officers discovered Lowe unresponsive in the back of the patrol car and

called an ambulance. Lowe died of acute cocaine intoxication. The officers were

disciplined by City. The disciplinary reports concluded: “[A] person requesting medical

assistance or reporting medical distress should certainly receive assistance . . . [The officer

in question] has exhibited a blatant disregard for the policies and procedures of the Fort

Worth Police Department.”

Plaintiff makes a number of conclusory allegations regarding Lowe’s obvious and

noted distress, but she does not allege facts to show that any of the Movants was aware that

Lowe had overdosed on cocaine and needed immediate medical attention. Plaintiff does

not describe Lowe’s physical appearance or any symptoms of his alleged distress except

for his own statements that he could not breathe, that he was sick, and that he was dying.

Plaintiff does not say that Lowe was vomiting, foaming at the mouth, convulsing or seizing,

or choking, or incoherent, or uncommunicative or anything else that would indicate a

serious medical need. She does not allege what medical symptoms movants specifically

5That Movants may have discussed getting out of work, i.e., hospital guard detail, does not

establish deliberate indifference. Movants clearly intended to take Lowe to JPS. His condition,

whatever it was, would surely have been just as obvious to trained medical personnel, no matter

what Movants said.

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discussed. Plaintiff does not allege that any drugs or drug paraphernalia were found. Nor

does she explain why movants should have known that Lowe was in imminent danger of

dying. Lowe had been able to walk, both with and without help; he said he could not

breathe, but continued to talk, responding “ok, ok” and “yes sir.” One officer believed

Lowe was faking, because he told Lowe “not to pull that shit.” Another officer cautioned

Lowe not to spit on him, indicating that Lowe had already done so. Lowe banged his head

on the interior of the police car, but apparently stopped when officers told him to stop.

Plaintiff's premise is apparently that a police officer is required to call an ambulance

if a detainee requests one, e.g., by saying he is sick or cannot breathe or dying. However,

she does not cite any case so holding or make any attempt to show that such was the clearly

established state of the law at the time Movants encountered Lowe. See Thompson, 245

F.3d at 458 (plaintiff must have case law from this circuit handed down in time to be clearly

established at the time of the events in the case being considered). In fact, she does not cite

any case involving similar facts. The closest she comes is Dyer, 964 F.3d 374. Doc. 49 at

6. There, officers had custody of a delusional detainee who was severely harming himself

by violently slamming his head against the patrol car over forty times. 964 F.3d at 384.

The officers knew the detainee had taken LSD, that he was exhibiting erratic behavior, that

he was incoherent and screaming, that he was in a drug-induced psychosis, and that he had

a visible and serious head injury. Id. at 377–79. The cause of death was craniocerebral

trauma. Id. at 379.

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The cases Plaintiff cites to establish the constitutional obligation to summon medical

care do not concern fact situations remotely related to the one at issue here. For example,

Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752 (5th Cir. 2001), concerned the case

of an inmate who committed suicide. The prison psychiatrist was granted qualified

immunity. Jones v. Tex. Dep’t of Crim. Justice, 880 F.3d 756 (5th Cir. 2018), concerned

knowing interferences with prescribed medical care for a diabetic. Thompson, 245 F.3d

447, concerned failure to provide medical care for delirium tremens suffered in jail, which

was clearly required by prior cases.

Finally, Plaintiff attempts to meet her burden by distinguishing cases Movants have

cited, contending among other things that they apply the wrong test. For the last twenty

years, the Fifth Circuit has described the deliberate indifference test as having three

elements: (1) the defendant was aware of facts from which an inference of substantial risk

of serious harm could be drawn; (2) the defendant actually drew that inference; and, (3) the

defendant’s response indicates that he subjectively intended the harm to occur. See, e.g.,

Sanchez v. Young Cty., 866 F.3d 274, 280 (5th Cir. 2017); Brown v. Strain, 663 F.3d 245,

249 (5th Cir. 2011); Tamez v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009); Thompson, 245

F.3d at 458–59. Recently, two different panels have noted the inconsistency in the circuit’s

opinions, some requiring the third element, others reciting only the first two prongs. See

Dyer v. Houston, 964 F.3d 374 (5th Cir. 2020); Garza v. City of Donna, 922 F.3d 626 (5th

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Cir. 2019). Garza points out that neither of the court’s two en banc decisions6 requires

proof that officials subjectively intend that harm occur. 922 F.3d at 636, n.6. Of course,

Hare does refer to “deliberate indifference”" as “the subjective intent to cause harm,” 74

F.3d at 649, and Williams notes that Farmer’s subjective test “isolates those who inflict

punishment.” 797 F.3d at 281 (quoting Farmer, 511 U.S. at 839). Neither Dyer nor Garza

discusses what a reasonable officer should have known the law to be in this regard.

Movants contend that all three elements must be pleaded and proved; Plaintiff contends

that the third element is not part of the test. The court need not decide. Movants are entitled

to qualified immunity unless Plaintiff shows that each of them had subjective knowledge

of a substantial risk of serious harm to Lowe and responded with deliberate indifference.

Hare, 74 F.3d at 650. This she has failed to do. At most, she has shown negligence or gross

negligence, which is insufficient to support a finding of deliberate indifference. Thompson,

245 F.3d at 459.

CONCLUSION

For the reasons discussed herein,

The court ORDERS that Movants’ motions to dismiss be, and are hereby, granted;

that Plaintiff take nothing on her claims against Movants; and, that such claims be, and are

hereby, DISMISSED WITH PREJUDICE.

6Hare v. City of Corinth, 74 F.3d 633 (5th Cir. 1996) (en banc), and Williams v. Hampton,

797 F.3d 276 (5th Cir. 2015) (en banc).

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The court determines that there is no just reason for delay in, and hereby directs,

entry of final judgment as to the claims against Movants.

SIGNED October 30, 2020.

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